whether FIR be treated as 161 statement =Their preliminary act of visiting the scene cannot be regarded as part of investigation.- the police visited the scene much prior to the registration of FIR and conducted the investigation and therefore, Ex.P.1 was hit by Sec.162 Cr.P.C. In our considered view, even if the said admission of PW.1 is taken into consideration, the FIR would not be hit by Sec.162 Cr.P.C for the reason that in this case, the acts performed by the police after reaching the spot cannot be regarded as part of investigation.

THE HONBLE SRI JUSTICE SURESH KUMAR KAIT AND  THE HONBLE SRI JUSTICE U.DURGA PRASAD RAO                    

Criminal Appeal No.1603 of 2010

21-04-2017

Maskoori Srinivas.Appellant/Accused No.1

The State of A.P. Rep by its Public Prosecutor, High Court of A.P, Hyderabad. . Respondent

Counsel for Appellant : Smt. C. Vasundhara Reddy

Counsel for Respondent   : Public Prosecutor (Telangana)

<Gist:

>Head Note:

? Cases referred:
1)(2014) 2 SCC Pg.1
2)1993 CriLJ 3684 (SC)
3)2010(1) ALD Crl. Pg.699 (AP)
4)(2004) 13 SCC 165
5)2017(1) ALT (Crl.) 48 (AP) = 2017(1) ALD (Crl.) 265 (AP)
6)1994(2) SCC Pg.685
7)2009 CriLJ 4655(SC)
8)(1995) 4 SCC 392
9)(2004) 13 SCC 165

HONBLE SRI JUSTICE SURESH KUMAR KAIT        
AND
HONBLE SRI JUSTICE U. DURGA PRASAD RAO        
CRIMINAL APPEAL No.1603 of 2010    
JUDGMENT: (Per Honble Sri Justice U.Durga Prasad Rao)  
     The challenge in this Criminal Appeal, at the instance of
Appellant/A1, is the conviction and sentence recorded by the learned
VI Additional District and Sessions Judge, Medak at Siddipet in his
Judgment dt.28.09.2010 in S.C.No.154/2009 whereby and  
whereunder the learned Judge while acquitting A2, found A1 guilty of
the charges under Sections 302, 379, 498-A of Indian Penal Code and
Sections 3 and 4 of Dowry Prohibition Act (for short D.P.Act) and
sentenced him to suffer imprisonment for LIFE and other sentences as
mentioned in the judgment.
2)      The facts which led A1 to file the instant Criminal Appeal
briefly are that the deceased is the wife of A.1 and since after the birth
of a male child namely Nootan, A.1 started harassing the deceased for
additional dowry and inspite of her parents paying amounts to him
from time to time, he was not satisfied and he used to harass her
physically and mentally for additional dowry.  Besides he was
addicted to vices like playing cards and consuming alcohol.  The
deceased refused to have sexual intercourse with him on the
apprehension that he was suffering with HIV disease. A.1
misunderstood her refusal as her having some extra marital affairs and
decided to kill her ultimately. On the intervening night of
12/13.09.2008, A1 brutally killed her by hacking with an axe in their
rented house situated at Ganesh Nagar, Siddipet.  After investigation,
the I.O laid charge sheet against the accused.
a)      On appearance of accused, the trial Court framed charges
against A1 and A2 for the offences under Sections 302, 379, 498-A of
IPC and Sections 3 and 4 of D.P.Act, for which, the accused pleaded
not guilty and claimed to be tried.
b)      During the trial, PWs.1 to 15 were examined and Exs.P1 to P14
were marked and MOs.1 to 14 were exhibited on behalf of the
prosecution. No defence evidence was adduced on behalf of the
accused, but Exs.D1 and D2 were marked from the portions of the
Section 161 Cr.P.C., statements of PWs-3 and 6 respectively.
c)      The defence of the accused is one of total denial of the offence.
d)      The trial Court on appreciation of the evidence, found A1 guilty
for the charges framed against him and accordingly convicted and
sentenced him as stated supra, however acquitted A2.
     Hence, the Criminal Appeal by A1.
3)      Heard arguments of Smt. C.Vasundhara Reddy, learned counsel  
for appellant/A1 and learned Public Prosecutor for the State
(Telangana).
4 a)    Severely fulminating the Judgment, learned counsel for the
appellant/A1 firstly argued that it is a case based purely on
circumstantial evidence, as admittedly, there were no eye-witnesses
for the offence allegedly committed by A1 but the trial Court
erroneously convicted the accused even though the prosecution failed
to establish the suspicious circumstances projected against him.
Hence, the conviction and sentences are legally not tenable and liable
to be set aside. In-expatiation, learned counsel would submit that
PWs.1 to 4, 7 and 8 were highly interested witnesses and the trial
Court placed implicit reliance on their evidence without any
corroboration and came to a wrong conclusion as if A1 demanded
additional dowry and harassed the deceased and even murdered her.
No independent witnesses were examined to establish the guilt of the
accused.
b)      Secondly, she argued, there was absolutely no reliable evidence
to hold that A1 and the deceased were last seen together and in that
regard the evidence of PWs.5 and 6 was highly doubtful and
unbelievable and therefore, the Trial Court ought to have rejected their
evidence as unnatural and improbable.
c)      Thirdly, learned counsel would argue that the entire prosecution
case is unbelievable and liable to be discarded for the main reason that
in this case most of the investigation such as inspection of scene of
offence, recovery of dead body, examination of the main witnesses
etc., were completed long prior to the registration of FIR and hence the
FIR is hit by Sec.162 Cr.P.C.  Learned counsel argued that on
receiving information, the police must at first register FIR and then
commence the investigation which is the trite law but the reverse
procedure is followed in this case obviously to manipulate the FIR to
suit their case. Learned counsel relied upon the following decisions to
argue the necessity to register the FIR on receipt of information:
1)  Lalitha Kumari vs. Government of Uttar Pradesh and others

2)  State of Andhra Pradesh vs. Punati Ramulu and others
d)      Fourthly, she argued that the alleged confession of A1 and the
consequent recovery of blood stained cloths and Axe were all fertile
manipulation by the police and thus ought to have been discarded.
Learned counsel thus prayed to allow the appeal and set-aside the
conviction and sentences.
e)      Alternatively she argued, even if prosecution case is believed to
be true, the charge under Sec.302 IPC is not maintainable for the
reason that the facts would reveal that the motive for accused to kill
his wife was due to the fact that on the night of incident she did not
permit him to have intercourse with her.  If that is true, the accused
might have committed the offence in a fit of anger and he had no
intention to kill her.  Further, the evidence of post-mortem doctor
would show that the fatal injuries found on the dead body could be
caused with the reverse portion of MO12Axe which indicate that
the accused had no intention to kill the deceased as otherwise he
would have chopped her body with the sharp edge of the axe.  Hence,
she would argue, the case may be treated as a culpable homicide not
amounting to murder and consequently the punishment may be  
converted from Sec.302 IPC to 304 Part II IPC. She relied upon the
decision reported in Kandi Venkata Suneel Kumar Reddy S/o Subba  
Reddy vs. The State of Andhra Pradesh rep. by its Public Prosecutor
High Court of A.P.  to buttress her argument.
5)      Per contra, while supporting the judgment learned Public
Prosecutor argued that the prosecution by cogent evidence of PWs.1
to 4 and 7 to 8, established the strained relation between A.1 and
deceased due to his harassing her for additional dowry. He argued that
PWs.1 to 4 being the close relations of the deceased were the best
persons to speak of dowry harassment meted out by the accused and
hence their evidence cannot be discarded on the sole ground that they
are relations of the deceased.  He further argued, their evidence would
reveal that few days prior to the incident, the accused took a house on
rent in Siddipet. He setup his family with deceased and on the night of
incident, he was with the deceased as spoken by PWs.5 and 6 and on
the early morning of next day, the dead body was found in his house.
Therefore, the accused being the husband of the deceased and inmate
of the house where murder took place, owes a responsibility to offer
an explanation about the cause of death of deceased under Sec.106 of
Indian Evidence Act, as the said fact was especially within his
knowledge.  Since the accused disappeared from the very next day of
incident and did not offer any explanation and he was arrested by the
police few days after the incident and most importantly, upon his
confession and revelation, police recovered MOs.4, 12, 13 and 14, all
the suspicious circumstances which were established by the
prosecution unerringly proved the guilt of the accused. Therefore, the
trial Court rightly recorded conviction against him and thus there are
no merits in the appeal. He further argued that the FIR was not hit by
Sec.162 Cr.P.C as argued by the appellant because, PW.13
emphatically stated that the police commenced investigation only after
registration of FIR and not before. He alternatively argued that even
assuming that on cryptic information by some person about their
finding dead body in the house of A.1, the police went to the scene of
offence to ascertain the truth of the said fact, that act of the police
itself would not amount to commencement of the investigation.
Accordingly, the FIR registered subsequently would not be hit by
Sec.162 Cr.P.C. On this aspect, he relied upon the following decisions:
1)  State of Rajasthan vs. Maharaj Singh and another
2)  S.K.Dawood vs. The State of A.P. rep.by its Public Prosecutor
        He thus prayed to dismiss the appeal.
6)      In the light of above rival arguments, the points that arise for
determination are:
i)      Whether the prosecution could establish all the suspicious
circumstances projected against the appellant/A.1 and whether
such proven circumstances unerringly establish his guilt?
ii)     Whether the judgment of the trial Court is factually and legally
sustainable?
7)      POINT No.1: It is a case based on circumstantial evidence.
Admittedly A.1 and deceased were husband and wife and she was  
murdered in his house. Hence the prosecution is expected to establish
the following incriminating circumstances:
i)      A.1 used to harass the deceased for additional dowry and on
other family issues;
ii)     Both of them lived in rented house of PW.5 since few days
before the incident.
iii)     On the night of incident, A.1 and the deceased were together in
the rented premises.
iv)      A.1 absconded since the night of incident and did not offer
explanation either for the death of his wife or his abscondance.
v)      Recovery of incriminating material objects on the disclosure of
A.1
vi)      Motive.
       The prosecution sought to prove most of the above
circumstances through the evidence of PWs.1 to 8.  PW.1 is the
mother; PW.3 is the brother and PWs.2 and 4 are maternal uncles of
the deceased; PW.5 is the owner of the rented house of A.1 at Siddipet
and PW.6 is the co-tenant; PW.7 is the mediator who arranged the
marriage of deceased with A.1; and PW.8 is the master of PW.3 under
whom PW.3 worked as driver. Hence we gave our anxious  
consideration to the above evidence.
8)      The evidence of PW.1 is to the effect that the marriage of
deceasedRenuka, who was her eldest daughter and A.1 was held  
about 8 years prior to her evidence; during marriage, they gave dowry
of Rs.1,30,000/- gold and other paraphernalia; about 2 years back,
they begot a son by name Nootan, aged about 6 years; after the birth
of son, A.1, A.2 and their other relations started harassing the
deceased to bring additional dowry; A.1 used to beat her daughter
severely and send her to parental home demanding additional dowry
of Rs.50,000/-; PW.1 used to pay amounts to A.1 through their
daughter and it so happened four or five times; Once A.1 poured
Kerosene on her and threatened to kill her and her daughter escaped
and ran to the house of PW.7 to save herself and on knowing it, PW.1
and her relations went to Deepayampally village where A.1 resides
and raised galata and at that time, A.1 promised that he would not ill-
treat the deceased; however, sometime thereafter again A.1 beat her
daughter and sent her away; 3 days thereafter A.1 came to their house
informing that he took a rented house in Ganesh Nagar area of
Siddipet (belonging to PW.5) and he would live amicably with
deceased and requested to send her and on his repeated requests, they
persuaded and sent the deceased with A.1 to Siddipet which is at a
distance of 3 kms from the village of PW.1 i.e, Ensanpally; PW.1 used
to vend milk at Siddipet everyday and she used to go to the house of
deceased also to give milk to her daughter; As usual, a day before
incident when she went to give milk to her daughter, her grandson
wanted to come to their village and so she sent her son Ramesh, who
brought the boy to their village; On the date of incident as usual at
7:00 or 7:30am, PW.1 supplied milk in some houses at Siddipet and
went to rented house of A.1 and found the doors locked from outside;
So she handed over milk to PW.6, the co-tenant and requested to
handover it to her daughter when she returned home; At about 9:00 or
9:30am her grandson insisted to return back to Siddipet to her
mothers house from Ensanpally and so PW.2 took him to Siddipet
and found the house of A.1 locked, hence he brought back the boy to
the house of PW.1 and informed the said fact; Later, when PW.2 gave
a ring to A.1 through his cell phone, A.1 abused him and abruptly
disconnected the call; on suspicion PW.1, PW.2 and others went to the
house of A.1 and found the doors were still locked; PW.2 climbed the
roof and peeped through the sunglass and found the dead body of
Renuka in supine position on the floor of the second room with hands
and legs tied with pieces of a bed sheet cloth, injuries on the head and
a white cloth tied around the neck and the tongue protruded; On
intimation by somebody, the police came and opened the doors and
saw the dead body in the conditions mentioned above; PW.1 gave
Ex.P.1report to police complaining that A.1 and relations murdered
her daughter; PW.1 identified Exs.P.2 to P.5photographs of the
deceased, MOs.1 to 3clothes and MO.4pair of gold pusthelathadu  
of the deceased.
9)      The evidence of PWs.2 to 4 is more or less in similar lines.
Their evidence mainly project how the A.1 used to harass and torture
the deceased repeatedly for additional dowry inspite of PW.1 paying
him amounts periodically to the best of her ability.  Their evidence
would also reveal that few months prior to the incident, once A.1
poured Kerosene on deceased and threatened to set her ablaze and she
could save herself by running to the house of PW.7, who was the
mediator for their marriage.  Their evidence would further reveal that
about few days prior to the incident, A.1 approached PW.1 and took
his wife and son on the promise that he would look after them well
and setup his family at Ganesh Nagar, Siddipet in the rented premises
of PW.5.  Since then they hardly lived together for a week or so before
the deceased was brutally murdered in that house. Their evidence
would further demonstrate the crucial fact that on the previous day of
incident A.1 and deceased resided in the rented premises.
a)      Coming to the probative value of their evidence, PWs.1 to 4
were extensively cross-examined but it must be said that their evidence
touching the aforementioned crucial facts could not be shattered.  On
the other hand, their evidence contained a ring of truth and
corroborated by other independent witnesses like PWs.5 to 8.
10)     PW.5 deposed that he resides at Ganesh Nagar, Siddipet; he
knows A.1 and in the month of September, 2008 he leased out one of
the three portions of his house to A.1 on a monthly rent of Rs.500/-;
PW.6 is also his tenant; after taking the premises on lease A.1 brought
his wife and son within three days; he hardly lived in the said house
for one week and within that period incident (death of deceased) took
place; on the fateful night he saw the deceasedRenuka talking with
PW.6 in her house by rolling beedies till 9:00pm and thereafter he did
not know what happened; he woke up early in the morning at about
4:00am and found the premises of A.1 locked and the common main  
door for all the four portions was also opened and on seeing it he
thought that A.1 and his wife have gone out by locking their house;
PW.1 came in the morning at about 7:00am and handed over milk to
PW.6 to give it to deceased after her returning home; he left the house
at 6:00am and returned at 12:00 noon and found number of persons
and police gathered at the house of accused and all of them noticed the
dead body of Renuka.
a)      In the cross-examination PW.5 admitted that there was no
written lease deed between him and A.1.  Except that nothing specific
could be elicited to belie the evidence of PW.5.  Most importantly no
specific suggestion was given to the effect that A.1 never resided along
with deceased in his house as tenant.  PW.5 is an independent witness
and no enmity was brought-forth between A.1 and him. Therefore, the
entire evidence of PW.5 can be accepted to be true.
11)     Then PW.6 one of the co-tenants deposed that she knows A.1,
who took the premises of PW.5 on lease about 10 days prior to the
incident; his premises is opposite to her portion and each portion
consists of two rooms; the incident took place on the night of
12.09.2008 and on that night she along with the deceased rolled
beedies in her portion till 9:30pm and thereafter the deceased went to
her portion to go to bed; A.1 was present in the house on the fateful
night; A.1s son was not in the house as the younger brother of
deceased took the boy to Ensanpally village on that day evening at
about 5:00pm; she woke up at 6:30am on 13.09.2008 and found the
house of A.1 locked and she thought that the deceased and A.1 might
have left the house in the early morning; she found the chappals of the
deceased lying in front of the house; at about 7:00am PW.1 came and
enquired about her daughter and this witness expressed her ignorance
and then PW.1 handed over milk to her with a request to give it to her
daughter; about an hour thereafter PW.1 again came and enquired
about her daughter and PW.6 replied that she had not returned yet;
thereafter PWs.1 and 2 and others came again and the male person
climbed on the roof of the house of A.1 and found the dead body of
Renuka lying in the house and thereafter police came to the scene and
the door of A.1 was opened and she also went and found the dead
body of the deceased in the second room of A.1s portion; the legs and
hands of the deceased were tied with bed sheet pieces and a towel was
tied around her neck and the deceased was strangulated; tongue was
protruded, injuries were also there on the head of the deceased.
a)      This witness was also cross-examined at length but her evidence
could not be impeached.  No doubt Ex.D2 was marked from her 161
Cr.P.C statement wherein she stated as if PW.1 climbed the roof top
and saw the dead body which she denied in her evidence.  As rightly
observed by the trial Court, the question of an aged lady like PW.1
climbing on the top of roof is most unlikely. This contradiction is not
a material one to impeach the credibility of PW.6.  Like PW.5, she is
also an independent witness and having no enmity with A.1 to speak
ill of him.  Thus the evidence of PWs.5 and 6 amply support the
evidence of PWs.1 to 4 to the effect that A.1 and deceased resided in
the house of PW.5 as tenants since few days prior to the incident and
most importantly, both of them were seen together in their rented
portion on the previous night of the incident.
12)     PW.7 is a resident of Deepayampally village where A.1 and A.2
were living.  He was the mediator for the marriage between A.1 and
deceased as he happens to be the distant relation of PWs.1 to 4.  He
deposed that for two years after marriage A.1 and deceased lived
amicably and begot a son. As the boy was prematurely born, he had
health problems and A.1 and deceased spent money for his treatment
and so A.1 claimed that he spent Rs.30,000/- and demanded his in-
laws to reimburse Rs.30,000/- spent by him.  PW.7 stated that in that
regard disputes arose between A.1 and deceased and therefore, PWs.1
to 4 came to the house of A.1 and this witness also went there twice or
thrice and advised them to live amicably. He further stated that after
the birth of the son, A.1 was addicted to vices like liquor and playing
cards and was living wayward life. He further stated that on knowing
about the death of deceased, he went to the rented house of A.1 at
Siddipet and saw the dead body. Ofcourse this witness did not speak
about earlier A.1 pouring Kerosene on the deceased and threatening to
kill her.  The said fact was spoken by PW.8.
13)     Coming to PW.8, he owns a Tata sumo vehicle and PW.3  
worked under him as a driver for 4 years. During that period, once
PW.3 informed him that A.1 poured Kerosene on his sister and
attempted to kill her and requested this witness to come along with
him to the house of accused at Deepayampally. PWs.7 and 8 were also
cross-examined but the basic fabric in their evidence to the effect that
A.1 used to harass his wife for money and once he threatened her to
kill by pouring Kerosene, as spoken by the aforesaid witnesses could
not be shattered.
14)     Then Exs.P.2 to P.5photos and Ex.P.12post-mortem report    
coupled with the evidence of PW.12post-mortem doctor which are
not controverted would cumulatively show that the deceased was
found with the following external ante-mortem injuries:
1)      An U shaped ligature mark present over the anterior
neck.  An U shaped ligature mark placed over the adoms
apple. The free ends were forwarding both sides of neck
horizontally and tapering posterior neck.  Dimensions of injury
Ligature marks is " to  floor: brownish and parched.  Edges
of ecchymosed.  Underneath the ligature mark neck structure not
bruised.
2)      A massive contusion over the right fronto parietal area of
the scalp. Underneath the said contusion there is linear
compound fracture of fronto parietal bone (compound fracture).
Underneath the fracture subdural and external dural hematoma
present.
3)      A massive contusion over the left parieto-occipital region.
Underneath the contusion a fracture of 3 giving rise to extra
dural and sub dural hematoma.
        The Doctor opined that the cause of death of deceased was due
to head injury and injuries 2 and 3 were fatal and sufficient to cause
death in the ordinary course of nature.
15)     Then PW.11 speaks of the confession of A.1 leading to recovery
of MOs.4 and 12 to 14. He deposed that on 26.09.2008 he along with
one B.Narender went to Siddipet town Circle where the police
interrogated A.1 in their presence and the A.1 admitted his guilt under
Ex.P.10 which is the admissible portion of his confessional statement.
Thereafter, A.1 led the police and the panchayatdars to his rented
house situated in Ganesh Nagar area and he led them to the bed room
and pointed out the upper shelf where he has hidden a bag containing
MO12(Axe) and MOs.13 and 14(his blood stained clothes) and    
the police recovered the same under Ex.P.12seizure panchanama.  
a)      The I.O sent material objects to FSL and Ex.P.14FSL report
would show that human blood was detected on Items 1 to 6.  Item
No.5 among them is the blood stained axe (MO12).  PW.11 is an
independent witness, who is a resident of Siddipet Town and he was a
tailor by profession. Ofcourse he admitted that he stitched clothes for
Police Constables but he categorically stated that he never acted as a
witness for police. Having regard to it, the evidence of PW.11 can be
safely believed.
16)     Thus on a conspectus of the above material evidence discussed
supra, it must be said that the prosecution by cogent evidence could
establish all the incriminating circumstances which are like individual
links in a chain. If all these individual links are fastened together, in
our opinion, they form into a complete chain unerringly pointing out
the guilt of A.1, for, they would manifestly depict that A.1 and
deceased were the couple; A.1 started harassing the deceased for
additional dowry since after the birth of his son; several times he bet
and drove her away to her parental home; PW.1 and her husband used
to pay him amounts to their mite but he did not mend his way and on
the other hand once he threatened her to kill by pouring kerosene and
the deceased could save herself by rescuing to PW.7; few days prior to
the incident, A.1 by persuading the family members of the deceased
took the deceased with him to his rented house of PW.5 at Siddipet
and started living with her and on the previous night of the incident he
was very much there with deceased in his house as spoken by PWs.5  
and 6 and on the next day morning, the deceased was found lying
murdered in her portion and A.1 found absconded.  Since A.1 was the
husband and an inmate of the house along with the deceased, the facts
relating to her death and the reason for his abscondance were
especially within his knowledge and therefore, he owe a responsibility
under Sec.106 of Evidence Act to divulge them which he failed.
Considering all these, the trial Court rightly found him guilty of the
charges under Sections 302, 379, 498-A of IPC and Sec.3 and 4 of
D.P.Act.
17)     Coming to the arguments advanced on behalf of appellant, it
was firstly argued that as if the prosecution failed to prove all the
incriminating circumstances projected against him. However this
argument does not carry any conviction in view of the above
discussion to the effect that the prosecution could prove all the
suspicious circumstances and able to complete the chain.
18)     Secondly it was argued that the prosecution failed to establish
that the deceased and A.1 lived together for the last time before her
death.  This argument also does not hold water in view of the rocklike
evidence of PWs.5 and 6, who are independent witnesses.
19)     Thirdly, it was argued that the FIR was hit by Sec.162 Cr.P.C
inasmuch as material part of investigation was completed long before
registration of FIR.
a)      It is trite law that soon the information relating to commission
of a cognizable offence is received, the police shall register the FIR and
start the investigation. The reverse process of registering FIR either in
the midway or after completion of investigation will deflate the
credibility of FIR.  The reason is not far to seek. FIR is expected to be
registered at the earliest point of time so that the facts narrated therein
are supposed to be true and intrinsic but not embellished or varnished.
The true facts narrated in FIR will help police investigate in correct
lines. On the other hand, despite receiving information, police without
registering FIR, if proceed with investigation at first and later register
the FIR, such FIR looses its credibility for the reason that the contents
in FIR might be manipulated to suit the prosecution case and its
investigation. Hence, FIR shall precede the investigation is the
generally accepted rule. However, sometimes the police may receive
only a cryptic or an incomplete information regarding the commission
of a cognizable offence, basing on which duty minded officer may
proceed to the scene of offence to ascertain the truth in that
information, or if necessary to save the victims or protect the scene of
offence etc. After completing the aforesaid preliminary exercise, he
may register FIR on the basis of information given by somebody and
embark on the full-fledged investigation thereafter.  In such an event,
can it be said, since he already visited the scene and performed certain
acts, the late registration of FIR was hit by Sec.162 Cr.P.C?  The law
on this aspect is no more res integra.
i)      In Ramsing Bavaji Jadeja vs. State of Gujarat , the Apex Court
observed thus:
Para 7: From time to time, controversy has been raised, as to at
what stage the investigation commences. That has to be
considered and examined on the facts of each case, especially,
when the information of a cognizable offence has been given on
telephone. If the telephonic message is cryptic in nature and the
officer in charge, proceeds to the place of occurrence on basis
of that information to find out the details of the nature of the
offence itself, then it cannot be said that the information, which
had been received by him on telephone, shall be deemed to be
first information report. The object and purpose of giving such
telephonic message is not to lodge the first information report,
but to request the officer in charge of the police station to reach
the place of occurrence. On the other hand, if the information
given on telephone is not cryptic and on the basis of that
information, the officer in charge, is prima facie satisfied about
the commission of a cognizable offence and he proceeds from
the police station after recording such information, to
investigate such offence then any statement made by any person
in respect of the said offence including details about the
participants, shall be deemed to be a statement made by a
person to the police officer in the course of an investigation,
covered by Section 162 of the Code. That statement cannot be
treated as first information report. But any telephonic
information about commission of a cognizable offence
irrespective of the nature and details of such information cannot
be treated as first information report. This can be illustrated. In
a busy market place, a murder is committed. Any person in the
market, including one of the shop-owners, telephones to the
nearest police station, informing the officer in charge, about the
murder, without knowing the details of the murder, the accused
or the victim. On the basis of that information, the officer in
charge, reaches the place where the offence is alleged to have
been committed. Can it be said that before leaving the police
station, he has recorded the first information report? In some
cases the information given may be that a person has been shot
at or stabbed. It cannot be said that in such a situation, the
moment the officer in charge leaves the police station, the
investigation has commenced. In normal course, he has first to
find out the person who can give the details of the offence,
before such officer is expected to collect the evidence in respect
of the said offence.
ii)     In Satish Narayan Sawat vs. State of Goa , the police on the
cryptic information and without any further details about the incident,
proceeded to the place of occurrence to make some survey and later
registered FIR.  It was held by the Apex Court that such act of Police
Officer going to the scene to make survey does not amount to
proceeding with investigation and therefore, recording of FIR later was
not hit by Sec.162 Cr.P.C.
iii)    In State of Rajasthan vs. Maharaj Singh and another , cited by
the learned Public Prosecutor, the facts were that the deceased in
injured condition admitted in hospital and the duty doctor sent
intimation to police station pursuant to which the SHO came to
Hospital but could not record statement of deceased as he was not in a
fit condition. Thereafter the police did not take action on that day but
the police swung into action only when a written complaint was
lodged in the police station next day at about 10:30am.  Delay in
registering FIR was held not fatal.
b)      From the above, it is clear that every information more-so a
cryptic information of commission of a cognizable offence though first
in point of time, need not be registered as FIR and in such an event,
the police may rush to the spot to ascertain the truth and if need be, to
save the victims by referring them to the hospital or to safeguard the
crime scene and do some other preliminary works. Doing these acts
cannot be termed as investigation, for, the meaning of investigation as
envisaged in Sec.2(h) of Cr.P.C is the collection of evidence and
preliminary works done by police was not collection of evidence.  In
such an event, the registration of FIR at a later stage will not be hit by
Sec.162 Cr.P.C.
20)     In the instant case, Ex.P.13FIR was registered at 14:00 hours
on 13.09.2008.  PW.13, who registered FIR has emphatically stated
that no police personnel from Siddipet I town PS visited the scene of
offence prior to the registration of FIR.  PW.1 also at one stage stated
as if after her giving Ex.P.1report, the police came to the scene of
offence and opened the doors.  Basing on the aforesaid evidence the
trial Court opined that Ex.P.1 was not hit by Sec.161 Cr.P.C.
a)      However, basing on the admission of PW.1 at a different stage
that the police came and opened the door at 10:00 or 10:30am, it was
argued by the counsel for appellant that the police visited the scene
much prior to the registration of FIR and conducted the investigation
and therefore, Ex.P.1 was hit by Sec.162 Cr.P.C.  In our considered
view, even if the said admission of PW.1 is taken into consideration,
the FIR would not be hit by Sec.162 Cr.P.C for the reason that in this
case, the acts performed by the police after reaching the spot cannot
be regarded as part of investigation.  PW.2 deposed that after he saw
the dead body from the top of the roof, he telephoned to Siddipet I
town P.S and informed about the lying of dead body in the house of
A.1 and thereafter police came to the scene of offence and after
observing the dead body in the house of A.1 and after staying at the
scene of offence for sometime, the police went back to PS and
subsequently PW.1 drafted Ex.P.1complaint and went to the Police
Station and presented. So as per PW.2 the police only visited the
scene and stayed there for sometime and returned back, which shows
the police visited the scene to ascertain the truth of the information
and nothing more.  Their preliminary act of visiting the scene cannot
be regarded as part of investigation. Hence the argument of appellant
cannot be accepted and consequently the decisions cited have no
application. Thus the prosecution could establish the guilt of A.1
beyond all reasonable doubts.  This point is answered accordingly.
21)     POINT No.2: In view of the findings in point No.1, the
judgment of the trial Court can be held to be factually and legally
sustainable.
        Accordingly this Criminal Appeal is dismissed by confirming
the conviction and sentences passed against A.1 by the trial Court.
     As a sequel, miscellaneous petitions, pending if any, shall stand
closed.
______________________  
SURESH KUMAR KAIT, J    
________________________  
U. DURGA PRASAD RAO, J    
Date: 21.04.2017

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